Professional Documents
Culture Documents
Appeal of-Amaratek
Under Contract No. W9124R-11-P-1054
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APPEARANCES
FOR THE GOVERNMENT:
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DECISION
Amaratek bears the burden of proving the Board's jurisdiction by a preponderance
of the evidence. Reynolds v. Army & Air Force Exchange Service, 846 F.2d 746, 748
(Fed. Cir. 1988); CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ii 35,700 at 174,816.
"The linchpin of this Board's jurisdiction under the CDA is a written claim by either the
contractor or the government." TTF, LLC, ASBCA No. 59511 et al., 15-1BCAii35,883 at
175,434; see Connectec Company, Inc., ASBCA No. 57546, 11-2 BCA ii 34,797 at 171,258
(citing CDA, 41 U.S.C. 7103(a)). Although the CDA does not define the term ''claim,"
the Federal Acquisition Regulation (FAR) does: "Claim means a written demand or written
assertion by one of the contracting parties seeking, as a matter of right, the payment of
money in a sum certain, the adjustment or interpretation of contract terms, or other relief
arising under or relating to the contract." FAR 2.101. Amaratek must therefore prove by
a preponderance of the evidence that either the Army's 24 August 2015 letter or Amaratek's
2 September 2015 response thereto constituted a ''claim" pursuant to FAR 2.101. CCIE &
Co., 14-1 BCA ii 35,700 at 174,816.
Amaratek cannot meet its burden of proof with respect to either letter. The
Army's 24 August 2015 letter was not a "demand" or "assertion" seeking the payment of
money the Army alleged it was due, or the interpretation of contract terms or other relief
arising under the contract as required by FAR 2.101. In fact, the letter did not seek
anything at all - instead, it merely notified Amaratek, as required by 10 U.S.C. 2463,
that the Army intended to in-source the laboratory services Amaratek was then
providing (SOF ii 2). See Alliant Techsystems, Inc. v. United States, 178 F.3d 1260,
1265 (Fed. Cir. 1999) (claim must "specifically assert entitlement to the relief
sought...[ and] be a demand for something due or believed to be due").
Amaratek' s 2 September 2015 letter itself also does not qualify as a proper
claim "arising under or relating to" this contract, as required by FAR 2.101. We have
previously held that where an appellant's claim is based upon a government decision
concerning a contract not yet in existence, the Board lacks jurisdiction to hear the case
because the claim "does not arise under or relate to appellant's contract." Statistica, Inc.,
ASBCA No. 44116, 92-3 BCA ii 25,095 at 125,126. Instead, such a claim is more in the
nature of a bid protest, over which the Board lacks jurisdiction. Id. at 125, 126-27 (citing
Coastal Corp. v. United States, 713 F.2d 728, 730 (Fed. Cir. 1983)).
The facts in Statistica are analogous to the facts involved in this appeal. In
Statistica the State Department awarded a contract for data processing services to the
Small Business Administration (SBA), who then subcontracted with Statistica, a
participant in the SBA's Section 8(a) program. During the course of Statistica's
performance, the contracting officer proposed a modification that would have added new
labor categories to the existing contract. The SBA notified the contracting officer that the
modification was considered a new contract for which Statistica was ineligible because it
had graduated from the Section 8(a) program. Statistica disagreed with the SBA's
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determination, and requested that the contracting officer issue a finding that the proposed
modification was within the scope of the original contract and to then execute the
modification. When the contracting officer declined to do so, Statistica filed an appeal
with the Board. We held that we lacked jurisdiction to entertain the appeal because the
dispute did "not arise under or relate to appellant's contract, but rather, it relate[ d] to a
contract not yet in being." 92-3 BCA ii 25,095 at 125, 126.
Here, Amaratek disputes the propriety of an Army decision concerning whether
it will (1) continue to acquire laboratory services for the Yuma Proving Ground from an
outside contractor or (2) make arrangements to have them performed by government
personnel. As in Statistica, this dispute does not relate to a contract already in existence,
but rather to a hypothetical contract that the Army, by exercising its in-sourcing
authority, has already decided will never exist - a contract "not yet in being." See id,
92-3 BCA ii 25,095 at 125, 126. As we stated in Statistica, "[t]he present dispute, at its
most fundamental level, is a disagreement over an agency's acquisition decision, and is
akin to a bid protest action," over which the Board lacks jurisdiction. Id.; Coastal Corp.,
713 F.2d at 730. To the extent Amaratek is requesting that the Board order the Army to
reverse its in-sourcing decision; that also fails to create jurisdiction in the Board because
the Board does not possess authority to grant injunctive relief or to order specific
performance. Statistica, 92-3 BCA ii 25,095 at 125,127.
CONCLUSION
The government's motion to dismiss is granted. The appeal is dismissed for lack
of jurisdiction.
Dated: 7 September 2016
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I concur
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MARK N. STEMPLER
Administrative Judge
Acting Chairman
Armed Services Board
of Contract Appeals
RICHARD SHACKLEFORD
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals
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I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 60503, Appeal of Amaratek,
rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals